LABH SINGH AND ORS. Vs. GURMAIL SINGH

JUDGEMENT

(1.) THIS is defendants' second appeal. The three appellants are brothers. They were the contesting defendants and sons of Amar Singh son of Ganga Singh resident of village Khetla, Tehsil Sunam, District Sangrur, Punjab. Jangir Kaur and Labh Kaur are the widow and daughter of Amar Singh, and mother and sister of the three appellants who were arrayed as the proforma defendants.

(2.) A suit for declaration and permanent injunction was brought by Gurmail Singh, the 4th brother of the three appellants, contesting their exclusive claims to suit property. At the time of his demise on 1st May, 2005, Amar Singh was owner to the extent of half share in the suit property. Plaintiff -Gurmail Singh pleaded that after the death of Amar Singh, he, Jangir Kaur and Labh Kaur became owners in possession to the extent of 1/6th share each in the suit property. He pleaded that Amar Singh never executed a last will and testament allegedly on 1st June, 1999 and if he did, it was illegal, null and void and the result of fraud and misrepresentation practiced in collusion by his three brothers and, therefore, it confers no right, title or interest upon them. A mutation of inheritance was entered in the revenue record in terms of the will behind the back of the plaintiff. Mutations are legally bad and carry no weight. The plaintiff was excluded from inheritance in the testamentary will. This is the background in which the suit was instituted in the civil court at Sangrur. The contesting defendants # 1 to 3 entered appearance on notice issued upon the suit. They filed their written statement raising various legal objections and denied on merits the facts asserted by the plaintiff. They asserted inter alia that a suit for declaration does not lie without claiming possession of immovable property. If possession is not sought, the suit is not maintainable. The averments in the plaint were stoutly refuted. They pleaded that the plaintiff had been residing separately from his father for a number of years. Their relations were strained and many a time quarrels took place between the father and the son even on petty matters. Plaintiff Gurmail Singh did not treat his father as his father. To the contrary, the defendants served and looked after Amar Singh in his old age and for the services rendered by them, the testator executed a will in favour of the three brothers and to the exclusion of the plaintiff. The will was registered in the office of Joint Sub -Registrar, Dirba. On the death of the father, they inherited his property and came into its possession and the last rites of their father were performed by the three brothers arrayed as defendants in the suit. The plaintiff did not file replication. The suit against defendants # 4 and 5 was dismissed under Order 9 Rule 2 of the CPC.

(3.) WHETHER suit is not maintainable in the present form?